Civ Pro: Learning About Case Flashcards
Service of Process
Must give notice to D. Deliver to D: (1) summons (formal court notice of suit and time for response) and (2) a copt of the complaint. Entire document is called PROCESS.
Who Serves Process?
Any nonparty who is at least 18 years old
How is Process Served?
- Personal Service– anywhere
- Substituted Service. Process is left with someone else in D’s usual abode; and serve someone of suitable age and discretion who resides there.
- Service on D’s Agent
- State law
- Waiver by Mail
Waiver by Mail
Mail to D a copy of the complaint and two copies of a waiver form with a prepaid means of returning the form. If D executes and mails waiver form to P within 30 days, D waives formal service. If fails to return waiver without good reason–then he pays for service.
Other documents
Serve by delivering or mailing the document to the party’s attorney or pro se party. If mailed, add three days for any required response. Can email too if consent.
Pleadings: Rule 11
Applies to all documents except discovery. When the lawyer or pro se party signs documents, she certifies that to the best of her knowledge and belief, after reasonable inquiry:
(i) The paper is not for improper purpose
(ii) legal contentions are warranted by Law, and
(iii) the factual contentions and denials of factual contentions have evidentiary support
* continued certification
Pleadings: Rule 11 Sanctions
Sanctions may be ordered against the attorney, firm, or party.
Court must give chance to be heard. Sanctions are supposed to deter. Can be non-monetary– if monetary then paid to court.
If other party violates Rule 11 can you move for sanctions now?
NO. you serve the motion on other parties but CANNOT file it. Party in violation has a safe harbor of 21 days to fix problem. If she does not do so, THEN motion can be filed.
Can court raise rule 11 problems on its own?
Yes. Court usually issues an “order to show cause” why sanctions should not be imposed. Court must give a chance to be heard before imposing sanction.
Pleadings: Complaint
Filing commences an action
Requirements:
1. Statement of grounds of SMJ
2. Short and plain statement of the claim, showing entitled to relief;
3. Demand for relief sought.
Must plead facts supporting a plausible claim.
Pleadings: What three matters must be pleaded with even more detail–with particularity or specificity?
Complaints involving fraud, mistake, and special damages.
*Special damages are those that do not normally flow from an event.
Pleadings: D’s Response- Rule 12
Rule 12 requires D to respond in one of two ways:
1) by motion or
2) by answer
Within 21 days after service of process.
*if you waived service, you get 60 days from when P mailed you the waiver form.
D’s Response: Motions
Still Rule 12–> Motions are not pleadings, they are requests for a court order.
D’s Response: Motions - Issues of Form
(1) Motion for more definite statement
(2) Motion to strike
D’s Response: RULE 12(b) Defenses
(1) Lack of SMJ
(2) Lack of PJ
(3) Improper Venue
(4) Insufficiency of Process
(5) Insufficient Service of Process
(6) Failure to State a Claim
(7) Failure to Join Indispensable Party
* these can be put in either motion or answer